Exhibit C(3)
______________________________________________________________________________
PORTLAND GENERAL ELECTRIC COMPANY
TO
HSBC BANK USA
(FORMERLY THE MARINE MIDLAND TRUST
COMPANY OF NEW YORK)
Trustee.
Fifty-second Supplemental Indenture
Dated: April 1, 2003
$50,000,000 First Mortgage Bonds,
5.279% Series, due 2013
Supplemental to Indenture of Mortgage and Deed of Trust,
dated July 1, 1945 of Portland General Electric Company.
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A TRANSMITTING UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
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This FIFTY-SECOND SUPPLEMENTAL INDENTURE (hereinafter this
"Supplemental Indenture"), dated April 1, 2003, is made by and between Portland
General Electric Company, an Oregon corporation (hereinafter called the
"Company"), and HSBC Bank USA (formerly The Marine Midland Trust Company of New
York), a New York banking corporation and trust company (hereinafter called the
"Trustee").
WHEREAS, the Company has heretofore executed and delivered its
Indenture of Mortgage and Deed of Trust (herein sometimes referred to as the
"Original Indenture"), dated July 1, 1945, to the Trustee to secure an issue of
First Mortgage Bonds of the Company; and
WHEREAS, bonds in the aggregate principal amount of $34,000,000 have
heretofore been issued under and in accordance with the terms of the Original
Indenture as bonds of an initial series designated "First Mortgage Bonds, 3-1/8%
Series due 1975" (herein sometimes referred to as the "Bonds of the 1975
Series"); and
WHEREAS, the Company has heretofore executed and delivered to the
Trustee several supplemental indentures which provided, among other things, for
the creation or issuance of several new series of First Mortgage Bonds under the
terms of the Original Indenture as follows:
Supplemental
Indenture Dated Series Designation Principal Amount
--------- ----- ------------------ ----------------
First 11-1-47 3-1/2 % Series due 1977 $ 6,000,000 (1)
Second 11-1-48 3-1/2 % Series due 1977 4,000,000 (1)
Third 5-1-52 3-1/2 % Second Series due 1977 4,000,000 (1)
Fourth 11-1-53 4-1/8 % Series due 1983 8,000,000 (2)
Fifth 11-1-54 3-3/8 % Series due 1984 12,000,000 (1)
Sixth 9-1-56 4-1/4 % Series due 1986 16,000,000 (1)
Seventh 6-1-57 4-7/8 % Series due 1987 10,000,000 (1)
Eighth 12-1-57 5-1/2 % Series due 1987 15,000,000 (3)
Ninth 6-1-60 5-1/4 % Series due 1990 15,000,000 (1)
Tenth 11-1-61 5-1/8 % Series due 1991 12,000,000 (1)
Eleventh 2-1-63 4-5/8 % Series due 1993 15,000,000 (1)
Twelfth 6-1-63 4-3/4 % Series due 1993 18,000,000 (1)
Thirteenth 4-1-64 4-3/4 % Series due 1994 18,000,000 (1)
Fourteenth 3-1-65 4.70 % Series due 1995 14,000,000 (1)
Fifteenth 6-1-66 5-7/8 % Series due 1996 12,000,000 (1)
Sixteenth 10-1-67 6.60 % Series due October 1, 1997 24,000,000 (1)
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Supplemental
Indenture Dated Series Designation Principal Amount
--------- ----- ------------------ ----------------
Seventeenth 4-1-70 8-3/4 % Series due April 1, 1977 20,000,000 (1)
Eighteenth 11-1-70 9-7/8 % Series due November 1, 2000 20,000,000 (4)
Nineteenth 11-1-71 8 % Series due November 1, 2001 20,000,000 (4)
Twentieth 11-1-72 7-3/4 % Series due November 1, 2002 20,000,000 (4)
Twenty-first 4-1-73 7.95 % Series due April 1, 2003 35,000,000 (4)
Twenty-second 10-1-73 8-3/4 % Series due October 1, 2003 17,000,000 (4)
Twenty-third 12-1-74 10-1/2 % Series due December 1, 1980 40,000,000 (1)
Twenty-fourth 4-1-75 10 % Series due April 1, 1982 40,000,000 (1)
Twenty-fifth 6-1-75 9-7/8 % Series due June 1, 1985 27,000,000 (1)
Twenty-sixth 12-1-75 11-5/8 % Series due December 1, 2005 50,000,000 (4)
Twenty-seventh 4-1-76 9-1/2 % Series due April 1, 2006 50,000,000 (4)
Twenty-eighth 9-1-76 9-3/4 % Series due September 1, 1996 62,500,000 (4)
Twenty-ninth 6-1-88 8-3/4 % Series due June 1, 2007 50,000,000 (4)
Thirtieth 10-1-78 9.40 % Series due January 1, 1999 25,000,000 (4)
Thirty-first 11-1-78 9.80 % Series due November 1, 1998 50,000,000 (4)
Thirty-second 2-1-80 13-1/4 % Series due February 1, 2000 55,000,000 (4)
Thirty-third 8-1-80 13-7/8 % Series due August 1, 2010 75,000,000 (4)
Thirty-sixth 10-1-82 13-1/2 % Series due October 1, 2012 75,000,000 (4)
Thirty-seventh 11-15-84 11-5/8 % Extendable Series A due 75,000,000 (4)
November 15, 1999
Thirty-eighth 6-1-85 10-3/4 % Series due June 1, 1995 60,000,000 (4)
Thirty-ninth 3-1-86 9-5/8 % Series due March 1, 2016 100,000,000 (4)
▇▇▇▇▇▇▇▇ ▇▇-▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Note Series 200,000,000
▇▇▇▇▇-▇▇▇▇▇ ▇▇-▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Note Series I 150,000,000
Forty-second 4-1-93 7-3/4 % Series due April 15, 2023 150,000,000
Forty-third 7-1-93 Medium Term Notes Series II 75,000,000
Forty-fourth 8-1-94 Medium Term Notes Series III 75,000,000 (1)
Forty-fifth 5-1-95 Medium Term Notes Series IV 75,000,000
Forty-sixth 8-1-96 Medium Term Notes Series V 50,000,000 (1)
Forty-seventh 12-14-01 Second Series due 2002 150,000,000 (4)
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Supplemental
Indenture Dated Series Designation Principal Amount
--------- ----- ------------------ ----------------
Forty-eighth 6-1-02 Collateral Series due 2003 72,000,000
Forty-ninth 6-1-02 Second Collateral Series due 2003 150,000,000
Fiftieth 10-1-02 8-1/8 % Series Due 2010 150,000,000
Fifty-first 10-1-02 5.6675 % Series Due 2012 100,000,000
(1) Paid in full at maturity.
(2) This entire issue of Bonds was redeemed out of proceeds from the sale of
First Mortgage Bonds, 3-3/8% Series due 1984.
(3) This entire issue of Bonds was redeemed out of proceeds from the sale of
First Mortgage Bonds, 4-5/8% Series due 1993.
(4) Redeemed in full prior to maturity.
which bonds are sometimes referred to herein as the "Bonds of the 1977 Series,"
"Bonds of the 1977 Second Series," "Bonds of the 1983 Series," "Bonds of the
1984 Series," "Bonds of the 1986 Series," "Bonds of the 4-7/8% Series due 1987,"
"Bonds of the 5 1/2% Series due 1987," "Bonds of the 1990 Series," "Bonds of the
1991 Series," "Bonds of the 4-5/8% Series due 1993," "Bonds of the 4 3/4% Series
due 1993," "Bonds of the 1994 Series," "Bonds of the 1995 Series," "Bonds of the
1996 Series," "Bonds of the 1997 Series," "Bonds of the 1977 Third Series,"
"Bonds of the 2000 Series," "Bonds of the 2001 Series," "Bonds of the 2002
Series," "Bonds of the 2003 Series," "Bonds of the 2003 Second Series," "Bonds
of the 1980 Series," "Bonds of the 1982 Series," "Bonds of the 1985 Series,"
"Bonds of the 2005 Series," "Bonds of the 2006 Series," "Bonds of the 1996
Second Series," "Bonds of the 2007 Series," "Bonds of the 1999 Series," "Bonds
of the 1998 Series," "Bonds of the 2000 Second Series," "Bonds of the 2010
Series," "Bonds of the 2012 Series," "Bonds of the Extendable Series A," "Bonds
of the 1995 Second Series," "Bonds of the 2016 Series," "Bonds of the Medium
Term Note Series," "Bonds of the Medium Term Note Series I," "Bonds of the 2023
Series," "Bonds of the Medium Term Note Series II," "Bonds of the Medium Term
Note Series III," "Bonds of the Medium Term Note Series IV," "Bonds of the
Medium Term Note Series V," "Bonds of the 2002 Second Series," "Bonds of the
Collateral Series," "Bonds of the Second Collateral Series," "Bonds of the 2010
Second Series," and "Bonds of the 2012 Second Series," respectively; and
WHEREAS, the Original Indenture provides that the Company and the
Trustee, subject to the conditions and restrictions in the Original Indenture
contained, may enter into an indenture or indentures supplemental thereto, which
shall thereafter form a part of said Original Indenture, among other things, to
mortgage, pledge, convey, transfer or assign to the Trustee and to subject to
the lien of the Original Indenture with the same force and effect as though
included in the granting clauses thereof, additional properties acquired by the
Company after the execution and delivery of the Original Indenture, and to
provide for the creation of any series of bonds (other than the Bonds of the
1975 Series), designating the series to be created and specifying the form and
provisions of the bonds of such series as therein provided or permitted, and to
provide a sinking, amortization, replacement or other analogous fund for the
benefit of all or any of the
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bonds of any one or more series, of such character and of such amount, and upon
such terms and conditions as shall be contained in such supplemental indenture;
and
WHEREAS, the Company has heretofore executed and delivered to the
Trustee fifty-one supplemental indentures amending in certain respects the
Original Indenture (such Original Indenture as so supplemented and amended is
hereinafter referred to as the "Mortgage"); and
WHEREAS, the Company desires to further amend the Mortgage in certain
respects pursuant to Section 17.01 of the Original Indenture, and the Trustee
has agreed to such amendments; and
WHEREAS, the Company desires to provide for the creation of a new
series of bonds to be known as "First Mortgage Bonds, 5.279% Series due 2013"
(sometimes herein referred to as the "Bonds of the 2013 Series"), and to specify
the form and provisions of the Bonds of the 2013 Series, and to mortgage,
pledge, convey, transfer or assign to the Trustee and to subject to the lien of
the Mortgage certain additional properties acquired by the Company since the
execution and delivery of the Original Indenture; and
WHEREAS, the Company intends at this time to issue $50,000,000
aggregate principal amount of Bonds of the 2013 Series under and in accordance
with the terms of the Mortgage and this Supplemental Indenture (the Mortgage as
so supplemented and amended by this Supplemental Indenture referred to as the
"Indenture"); and
WHEREAS, the Bonds of the 2013 Series and the Trustee's authentication
certificate to be executed on the Bonds of the 2013 Series are to be
substantially in the following form, respectively:
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(Form of Bond of the 5.279% Series due 2013)
[Face of Bond]
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS BOND, AGREES FOR
THE BENEFIT OF THE COMPANY THAT THIS BOND MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED OTHER THAN (A)(1) TO THE COMPANY, (2) IN A TRANSACTION
ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT, (3) SO LONG AS THIS BOND IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (4) OUTSIDE THE UNITED STATES
IN A TRANSACTION MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES
ACT OR (5) IN ACCORDANCE WITH ANOTHER APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) AND (B) IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF EACH STATE OF THE UNITED STATES. IF THE PROPOSED
TRANSFER IS PURSUANT TO CLAUSE (5) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER
INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF
THIS BOND COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY
PURCHASING THIS BOND, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT
IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2)
A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT.
If issued in global form and deposited with, or on behalf of, The Depository
Trust Company or its nominee (a "Global Bond"), include the following:
THIS GLOBAL BOND IS HELD BY THE DEPOSITORY (AS DEFINED IN THE MORTGAGE AND
SUPPLEMENTAL INDENTURE GOVERNING THIS BOND) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 1.10 OF THE SUPPLEMENTAL
INDENTURE, (II) THIS GLOBAL BOND MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 1.10(a) OF THE SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL
BOND MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.06
OF THE MORTGAGE AND (IV) THIS GLOBAL BOND MAY BE TRANSFERRED AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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Financial Guaranty Insurance Policy No. 20774BE, or any successor policy (the
"Policy"), with respect to payments due for principal of and interest on this
bond has been issued by Ambac Assurance Corporation ("Ambac"). The Policy has
been delivered to The Bank of New York, New York, New York, as the Insurance
Trustee under said Policy and will be held by such Insurance Trustee or any
successor insurance trustee. The Policy is on file and available for inspection
at the principal office of the Insurance Trustee and a copy thereof may be
secured from Ambac or the Insurance Trustee. All payments required to be made
under the Policy shall be made in accordance with the provisions thereof. The
owner of this bond acknowledges and consents to the rights, including
subrogation rights, of Ambac as more fully set forth in the Policy and the
Indenture.
No. _____ $__________
CUSIP No. _____
PORTLAND GENERAL ELECTRIC COMPANY
FIRST MORTGAGE BOND, 5.279% SERIES DUE 2013
Portland General Electric Company, an Oregon corporation (hereinafter
sometimes called the "Company"), for value received, hereby promises to pay to
________________, or registered assigns, the principal sum of $_____________ on
April 1, 2013 (the "Maturity Date"), except to the extent redeemed or repaid
prior to the Maturity Date, and to pay interest thereon semi-annually in arrears
on April 1 and October 1 (each an "Interest Payment Date") each year at the rate
of 5.279 per cent per annum (calculated on the basis of a 360-day year of twelve
30-day months), for the period from the April 1 or October 1, as the case may
be, next preceding the date hereof to which interest has been paid, or, if the
date hereof is an April 1 or October 1 to which interest has been paid, from the
date hereof, or, if the date hereof is prior to October 1, 2003, from April 1,
2003, provided, however, that if and to the extent the Company shall default in
payment of the interest due on such April 1 or October 1, then from the next
preceding date to which interest has been paid or if such default shall be in
respect of the interest due on October 1, 2003, then from April 1, 2003, until
payment of the principal hereof has been made or duly provided for. If the
Maturity Date or an Interest Payment Date falls on a day which is not a Business
Day, as defined below, principal or interest payable with respect to such
Maturity Date or Interest Payment Date will be paid on the next succeeding
Business Day with the same force and effect as if made on such Maturity Date or
Interest Payment Date, as the case may be. The person in whose name this bond
(or one or more predecessor bonds) is registered at the close of business on the
fifteenth day (whether or not such day is a Business Day) next preceding such
Interest Payment Date (the "Record Date") shall be entitled to receive the
interest payable hereon on such Interest Payment Date notwithstanding the
cancellation of this bond upon any registration of transfer or exchange thereof
subsequent to such Record Date and prior to such Interest Payment Date, unless
the Company shall default in the payment of interest due on such Interest
Payment Date, in which case the defaulted interest shall be paid to the person
in whose name this bond (or one or more predecessor bonds) is registered on a
subsequent record date fixed by the Company, which subsequent record date shall
be fifteen (15) days prior to the payment of such defaulted interest; provided,
however, that interest payable on the Maturity Date will be payable to the
person to whom the principal hereof shall be payable. As used herein "Business
Day" means any day, other than a Saturday or Sunday, that is not a legal holiday
or
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other day on which banking institutions are required or authorized by law,
regulation or executive order to close in The City of New York, New York, or
London, England.
Payment of the principal of and interest on this bond will be made in
immediately available funds at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is hereby made to the further provisions of this bond set
forth on the reverse hereof, including redemption terms, and such further
provisions shall for all purposes have the same effect as though fully set forth
at this place.
This bond shall not become or be valid or obligatory for any purpose
until the authentication certificate hereon shall have been signed by the
Trustee.
IN WITNESS WHEREOF, PORTLAND GENERAL ELECTRIC COMPANY has caused this
instrument to be executed manually or in facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be imprinted
hereon.
Dated:
PORTLAND GENERAL ELECTRIC COMPANY
By:___________________________________
[Title]
Attest: _________________________
[Assistant] Secretary
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(Form of Trustee's Authentication Certificate for
Bonds of the 5.279% Series due 2013)
This is one of the bonds, of the series designated herein, described
in the within-mentioned Indenture.
HSBC BANK USA, AS TRUSTEE
By: __________________________
Authorized Officer
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[Reverse of Bond]
This bond is one of the bonds of a series designated as First Mortgage
Bonds, 5.279% Series due 2013 (sometimes herein referred to as the "Bonds of the
2013 Series") limited to a maximum aggregate principal amount of $50,000,000.
Bonds of the 2013 Series are bonds of an authorized issue of bonds of the
Company known as First Mortgage Bonds, not limited as to maximum aggregate
principal amount, all issued or issuable in one or more series under and equally
secured (except insofar as any sinking fund, replacement fund or other fund
established in accordance with the provisions of the Indenture hereinafter
mentioned may afford additional security for the bonds of any specific series)
by an Indenture of Mortgage and Deed of Trust dated July 1, 1945, duly executed
and delivered by the Company to HSBC Bank USA (formerly known as The Marine
Midland Trust Company of New York), as Trustee, as supplemented, amended and
modified by fifty-one supplemental indentures and by the Fifty-second
Supplemental Indenture (such Indenture of Mortgage and Deed of Trust as so
supplemented, amended and modified by such fifty-one supplemental indentures and
the Fifty-second Supplemental Indenture being hereinafter called the
"Indenture"), to which Indenture and all indentures supplemental thereto,
including the Fifty-second Supplemental Indenture, reference is hereby made for
a description of the property mortgaged and pledged as security for said bonds,
the nature and extent of the security, and the rights, duties and immunities
thereunder of the Trustee, the rights of the holders of said bonds and of the
Trustee and of the Company in respect of such security, and the terms upon which
said bonds may be issued thereunder. Capitalized terms used herein and not
defined herein shall have the respective meanings in the Indenture, unless
otherwise noted.
The Bonds of the 2013 Series are not subject to any sinking fund.
The Bonds of the 2013 Series shall be redeemed in whole by the Company
prior to maturity (a) upon the sale or disposition substantially as an entirety
of the Company's electric properties at Portland, Oregon, at a price
("Redemption Price") equal to the greater of (i) 100% of the principal amount
hereof and (ii) an amount equal to the present value of the remaining principal
and interest payments due under this bond (not including any portion of such
payments of interest accrued as of the date of redemption), discounted to the
date of redemption on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus 15 basis points,
together in either case with accrued and unpaid interest to the date of
redemption, upon notice to the holders of the Bonds of the 2013 Series given not
more than ninety (90) nor less than thirty (30) days prior to the date of such
redemption; (b) upon the sale or other disposition substantially as an entirety,
whether in one or more transactions, of the electric distribution and
transmission assets and properties of the Company in its service territory at
the Redemption Price, upon notice given not more than ninety (90) nor less than
thirty (30) days prior to the date of such redemption; and (c) upon written
notice to the Trustee and the Company from Ambac that the Company is in breach
of its covenant in Section 3.01(a) of the Insurance Agreement by and between the
Company and Ambac dated April 8, 2003, at the Redemption Price, upon notice
given not more than ninety (90) nor less than thirty (30) days prior to the date
of such redemption.
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If this bond or any portion thereof ($1,000 or an integral multiple
thereof) is duly called for redemption and payment duly provided for as
specified in the Indenture, this bond or such portion thereof shall cease to be
entitled to the lien of the Indenture from and after the date payment is so
provided for and shall cease to bear interest from and after the date fixed for
such redemption.
In the event of the selection for redemption of a portion only of the
principal of this bond, payment of the redemption price will be made only upon
surrender of this bond in exchange for a bond or bonds (but only of authorized
denominations of the same series) for the unredeemed balance of the principal
amount of this bond.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than seventy-five percent
in principal amount of the bonds (exclusive of bonds disqualified by reason of
the Company's interest therein) at the time outstanding, including, if more than
one series of bonds shall be at the time outstanding, not less than sixty
percent in principal amount of each series affected, to effect, by an indenture
supplemental to the Indenture, modifications or alterations of the Indenture and
of the rights and obligations of the Company and of the holders of the bonds and
coupons; provided, however, that no such modification or alteration shall be
made without the written approval or consent of all holders hereof which will
(i) extend the maturity of this bond or reduce the rate or extend the time of
payment of interest hereon or reduce the amount of the principal hereof, (ii)
permit the creation of any lien, not otherwise permitted, prior to or on a
parity with the lien of the Indenture, or (iii) reduce the percentage of the
principal amount of the bonds upon the approval or consent of the holders of
which modifications or alterations may be made as aforesaid.
The transfer of this bond is registrable by the registered owner
hereof in person or by such owner's attorney duly authorized in writing, at the
corporate trust office of the Trustee in the Borough of Manhattan, City and
State of New York, upon surrender of this bond for cancellation and upon payment
of any taxes or other governmental charges payable upon such transfer, and
thereupon a new registered bond or bonds of the same series and of a like
aggregate principal amount will be issued to the transferee or transferees in
exchange therefor.
The Company, the Trustee and any paying agent may deem and treat the
person in whose name this bond is registered as the absolute owner hereof for
the purpose of receiving payments of or on account of the principal hereof and
interest due hereon, and for all other purposes, whether or not this bond shall
be overdue, and neither the Company, the Trustee nor any paying agent shall be
affected by any notice to the contrary.
Bonds of this series are issuable only in fully registered form
without coupons in denominations of $1,000 or any amount in excess thereof that
is an integral multiple thereof. The registered owner of this bond at its option
may surrender the same for cancellation at said office of the Trustee and
receive in exchange therefor the same aggregate principal amount of registered
bonds of the same series but of other authorized denominations upon payment of
any taxes or other governmental charges payable upon such exchange and subject
to the terms and conditions set forth in the Indenture.
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If an event of default as defined in the Indenture shall occur, the
principal of this bond may become or be declared due and payable before maturity
in the manner and with the effect provided in the Indenture. The holders,
however, of certain specified percentages of the bonds at the time outstanding,
including in certain cases specified percentages of bonds of particular series,
may in certain cases, to the extent and as provided in the Indenture, waive
certain defaults thereunder and the consequences of such defaults.
No recourse shall be had for the payment of the principal of or the
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof or of the Indenture, against any incorporator, shareholder, director or
officer, past, present or future, as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or such
predecessor or successor corporation, under any constitution or statute or rule
of law, or by the enforcement of any assessment or penalty, or otherwise, all
such liability of incorporators, shareholders, directors and officers, as such,
being waived and released by the holder and owner hereof by the acceptance of
this bond and as provided in the Indenture.
The Indenture provides that this bond shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be
construed in accordance with and governed by the laws of said State.
(End of Form of Bond of the 5.279% Series due 2013)
and
WHEREAS, all acts and proceedings required by law and by the charter
or articles of incorporation and bylaws of the Company necessary to make the
Bonds of the 2013 Series to be issued hereunder, when executed by the Company,
authenticated and delivered by the Trustee and duly issued, the valid, binding
and legal obligations of the Company, and to constitute this Supplemental
Indenture a valid and binding instrument, have been done and taken; and the
execution and delivery of this Supplemental Indenture have been in all respects
duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, that, in order
to secure the payment of the principal of, premium, if any, and interest on all
First Mortgage Bonds at any time issued and outstanding under the Original
Indenture as supplemented and modified by the fifty-one supplemental indentures
hereinbefore described and as supplemented and modified by this Supplemental
Indenture, according to their tenor, purport and effect, and to secure the
performance and observance of all the covenants and conditions therein and
herein contained, and for the purpose of confirming and perfecting the lien of
the Indenture on the properties of the Company hereinafter described, or
referred to, and for and in consideration of the premises and of the mutual
covenants herein contained, and acceptance of the Bonds of the 2013 Series by
the holders thereof, and for other valuable consideration, the receipt whereof
is hereby acknowledged, the Company has executed and delivered this Supplemental
Indenture and by these presents does grant, bargain, sell, warrant, alien,
convey, assign, transfer, mortgage, pledge, hypothecate, set over and confirm
unto the Trustee the following property, rights, privileges and franchises (in
addition to all other property, rights, privileges and franchises heretofore
subjected to the lien of the Original Indenture as
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supplemented by the fifty-one supplemental indentures hereinbefore described and
not heretofore released from the lien thereof, all of which shall secure all
bonds, including the Bonds of the 2013 Series), to wit:
CLAUSE I
Without in any way limiting anything in the Mortgage or hereinafter
described, all and singular the lands, real estate, chattels real, interests in
land, leaseholds, ways, rights-of-way, easements, servitudes, permits and
licenses, lands under water, riparian rights, franchises, privileges, electric
generating plants, electric transmission and distribution systems, and all
apparatus and equipment appertaining thereto, offices, buildings, warehouses,
garages, and other structures, tracks, machine shops, materials and supplies and
all property of any nature appertaining to any of the plants, systems, business
or operations of the Company, whether or not affixed to the realty, used in the
operation of any of the premises or plants or systems or otherwise, which have
been acquired by the Company since the execution and delivery of the Original
Indenture and not heretofore included in any indenture supplemental thereto, and
now owned or which may hereafter be acquired by the Company (other than excepted
property as defined in the Mortgage).
CLAUSE II
All corporate, Federal, State, municipal and other permits, consents,
licenses, bridge licenses, bridge rights, river permits, franchises, grants,
privileges and immunities of every kind and description, owned, held, possessed
or enjoyed by the Company (other than excepted property as defined in the
Mortgage) and all renewals, extensions, enlargements and modifications of any of
them, which have been acquired by the Company since the execution and the
delivery of the Original Indenture and not heretofore included in any indenture
supplemental thereto, and now owned or which may hereafter be acquired by the
Company.
CLAUSE III
Also all other property, real, personal or mixed, tangible or
intangible (other than excepted property as defined in the Mortgage) of every
kind, character and description and wheresoever situated, whether or not useful
in the generation, manufacture, production, transportation, distribution, sale
or supplying of electricity, hot water or steam, which have been acquired by the
Company since the execution and delivery of the Original Indenture and not
heretofore included in any indenture supplemental thereto, and now owned or
which may hereafter be acquired by the Company (other than excepted property as
defined in the Mortgage).
CLAUSE IV
Together with all and singular the plants, buildings, improvements,
additions, tenements, hereditaments, easements, rights, privileges, licenses and
franchises and all other appurtenances whatsoever belonging or in any wise
pertaining to any of the property hereby mortgaged or pledged, or intended so to
be, or any part thereof, and the reversion and reversions, remainder and
remainders, and the rents, revenues, issues, earnings, income, products and
profits thereof,
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and every part and parcel thereof, and all the estate, right, title, interest,
property, claim and demand of every nature whatsoever of the Company at law, in
equity or otherwise howsoever, in, of and to such property and every part and
parcel thereof (other than excepted property as defined in the Mortgage).
TO HAVE AND TO HOLD all of said property, real, personal and mixed,
and all and singular the lands, properties, estates, rights, franchises,
privileges and appurtenances hereby mortgaged, conveyed, pledged or assigned, or
intended so to be, together with all the appurtenances thereto appertaining and
the rents, issues and profits thereof, unto the Trustee and its successors and
assigns, forever:
SUBJECT, HOWEVER, to the exceptions, reservations, restrictions,
conditions, limitations, covenants and matters contained in all deeds and other
instruments whereunder the Company has acquired any of the property now owned by
it, and to permitted encumbrances as defined in Subsection B of Section 1.11 of
the Mortgage;
BUT IN TRUST NEVERTHELESS, for the equal and proportionate use,
benefit, security and protection of those who from time to time shall hold the
bonds authenticated and delivered under the Original Indenture and the fifty-one
supplemental indentures hereinbefore described or this Supplemental Indenture,
and duly issued by the Company, without any discrimination, preference or
priority of any one bond over any other by reason of priority in the time of
issue, sale or negotiation thereof or otherwise, except as provided in Section
11.28 of the Mortgage, so that, subject to said Section 11.28, each and all of
said bonds shall have the same right, lien and privilege under the Original
Indenture and the fifty-one supplemental indentures hereinbefore described, or
this Supplemental Indenture, and shall be equally secured thereby and hereby and
shall have the same proportionate interest and share in the trust estate, with
the same effect as if all of the bonds had been issued, sold and negotiated
simultaneously on the date of delivery of the Original Indenture;
AND UPON THE TRUSTS, USES AND PURPOSES and subject to the covenants,
agreements and conditions in the Original Indenture and the fifty-one
supplemental indentures hereinbefore described and herein set forth and
declared.
ARTICLE ONE.
BONDS OF THE 2013 SERIES AND
CERTAIN PROVISIONS RELATING THERETO.
SECTION 1.01. Certain Terms of Bonds of the 2013 Series.
(a) There is hereby established a series of First Mortgage Bonds of
the Company designated and entitled as "First Mortgage Bonds, 5.279% Series due
2013" (sometimes referred to as the "Bonds of the 2013 Series"). The aggregate
principal amount of the Bonds of the 2013 Series shall be limited to
$50,000,000, excluding, however, any Bonds of the 2013 Series which may be
executed, authenticated and delivered in exchange for or in lieu of or in
substitution for other Bonds of such Series pursuant to the provisions of the
Indenture.
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(b) The definitive Bonds of the 2013 Series (the "Definitive Bonds")
shall be issuable in substantially the form as hereinabove set forth in fully
registered form without coupons in the denomination of $1,000, or any amount in
excess thereof that is an integral multiple of $1,000. The Bonds of the 2013
Series will be issued in global form ("Global Bonds") and deposited with, or on
behalf of, The Depository Trust Company ("DTC" or the "Depository") or its
nominee. Except as set forth herein, holders of beneficial interests in Global
Bonds will not receive or be entitled to receive physical delivery in exchange
therefor and will not be considered to be the owners or holders of such Global
Bonds for any purpose under the Bonds of the 2013 Series or the Indenture.
(c) Notwithstanding the provisions of Section 2.05 of the Mortgage,
each Bond of the 2013 Series shall be dated as of the date of its
authentication, shall mature on April 1, 2013 (the "Maturity Date"), except to
the extent redeemed or repaid prior to the Maturity Date, and shall bear
interest for the period ("Interest Period") from the April 1 or October 1, as
the case may be, next preceding the date thereof to which interest has been
paid, or, if the date thereof is an April 1 or October 1 to which interest has
been paid, from the date thereof, or, if the date thereof is prior to October 1,
2003, from April 1, 2003, provided, however, that if and to the extent the
Company shall default in payment of the interest due on such April 1 or October
1, then from the next preceding date to which interest has been paid or if such
default shall be in respect of the interest due on October 1, 2003, then from
April 1, 2003, until payment of the principal thereof has been made or duly
provided for. Each Bond of the 2013 Series shall bear interest at the rate of
5.279 per cent per annum (calculated on the basis of a 360-day year of twelve
30-day months) until the payment of the principal thereof has been made or duly
provided for, such interest to be payable semi-annually on April 1 and October 1
("Interest Payment Date") in each year. If the Maturity Date or an Interest
Payment Date falls on a day which is not a Business Day, as defined below,
principal or interest payable with respect to such Maturity Date or Interest
Payment Date will be paid on the next succeeding Business Day with the same
force and effect as if made on such Maturity Date or Interest Payment Date, as
the case may be. The person in whose name any Bond of the 2013 Series is
registered at the close of business on the applicable Record Date (as defined
below) with respect to any Interest Payment Date shall be entitled to receive
the interest payable thereon on such Interest Payment Date notwithstanding the
cancellation of such Bond of the 2013 Series upon any registration of transfer
or exchange thereof subsequent to such Record Date and prior to such Interest
Payment Date, unless the Company shall default in the payment of the interest
due on such Interest Payment Date, in which case such defaulted interest shall
be paid to the person in whose name such Bond of the 2013 Series is registered
on a subsequent record date fixed by the Company, which subsequent record date
shall be fifteen (15) days prior to the payment of such defaulted interest;
provided, however, that interest payable on the Maturity Date will be payable to
the person to whom the principal thereof shall be payable. As used herein the
term "Business Day" means any day, other than a Saturday or Sunday, that is not
a legal holiday or other day on which banking institutions are required or
authorized by law, regulation or executive order to close in The City of New
York, New York, or London, England. As used herein, the term "Record Date" with
respect to any Interest Payment Date shall mean the fifteenth day (whether or
not such day is a Business Day) next preceding such Interest Payment Date. The
principal of and interest on the Bonds of the 2013 Series shall be payable in
any coin or currency of the United States of America which at the time of
payment is legal tender for the
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payment of public and private debts at the office or agency of the Company in
the Borough of Manhattan, City and State of New York.
(d) Notwithstanding anything to the contrary in the Indenture, the
Company will pay to the Trustee by 11:00 a.m., New York City time, on each
Interest Payment Date and on the Maturity Date immediately available funds in an
amount sufficient to pay all principal and interest due on the Bonds of the 2013
Series due on such Interest Payment Date and the Maturity Date. At or prior to
1:00 p.m., New York City time, on each Interest Payment Date and the Maturity
Date, the Trustee shall determine whether there has been deposited by the
Company with the Trustee sufficient funds to pay the principal of or interest on
the Bonds of the 2013 Series on such Interest Payment Date and the Maturity
Date. If the Trustee determines that it has received from the Company
insufficient funds to make such payment, the Trustee shall so notify Ambac
Assurance Corporation, or any successor thereto ("Ambac") in writing in the
manner required by Section 3.03 hereof. Such notice shall specify the amount of
the anticipated deficiency and whether the payment to be made on the Bonds of
the 2013 Series on such Interest Payment Date and the Maturity Date will be
deficient as to principal or interest, or both.
(e) The Trustee shall, after giving notice to Ambac as provided in
Section 1.01(d) above, make available to Ambac and, at Ambac's direction, to The
Bank of New York, in New York, New York, as insurance trustee for Ambac or any
successor insurance trustee (the "Insurance Trustee"), the registration books of
the Company maintained by the Trustee with respect to the Bonds of the 2013
Series, and all payment records of the Trustee in respect of the Bonds of the
2013 Series maintained under this Supplemental Indenture.
(f) In the event the Trustee notifies Ambac of any deficiency of
interest or principal payable on the Bonds of the 2013 Series pursuant to
Section 1.01(d) above, the Trustee shall provide Ambac and, at Ambac's
direction, the Insurance Trustee with a list of holders of Bonds of the 2013
Series entitled to receive principal or interest payments from Ambac under the
terms of the Financial Guaranty Insurance Policy No. 20774BE, issued by Ambac
(the "Policy"), and shall make arrangements with the Insurance Trustee (i) to
mail checks or drafts to the holders of Bonds of the 2013 Series entitled to
receive full or partial interest payments from Ambac and (ii) to pay principal
upon Bonds of the 2013 Series surrendered to the Insurance Trustee by the
holders of Bonds of the 2013 Series entitled to receive full or partial
principal payments from Ambac.
(g) The Trustee shall, within one Business Day of the time it provides
notice to Ambac pursuant to Section 1.01(d) above, furnish a notice
substantially in the form of Exhibit C hereto, to the holders of Bonds of the
2013 Series entitled to receive the payment of principal or interest thereon
from Ambac (i) as to the fact of such entitlement, (ii) that Ambac will remit to
them all or a part of the interest payments next coming due upon proof of the
holders' entitlement to interest payments and delivery to the Insurance Trustee
of an appropriate assignment (the form of which shall be provided by Ambac) of
the holders' right to such payment, (iii) that should they be entitled to
receive full payment of principal from Ambac, they must surrender their Bonds of
the 2013 Series (along with an appropriate instrument of assignment (the form of
which shall be provided by Ambac) to permit ownership of such Bonds of the 2013
Series to be registered in the name of Ambac) for payment to the Insurance
Trustee, and not the Trustee, and (iv) that should they be entitled to receive
partial payment of principal from Ambac, they must surrender their Bonds of the
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2013 Series for payment thereon first to the Trustee, which shall note on such
Bonds of the 2013 Series the portion of the principal paid by the Trustee or any
paying agent, and then, along with an appropriate instrument of assignment (the
form of which shall be provided by Ambac), to the Insurance Trustee, which will
then pay the unpaid portion of principal.
(h) In the event the Trustee has received written notice that any
payment of principal of or interest on Bonds of the 2013 Series that has become
due and payable and has been made to a holder of the Bonds of the 2013 Series by
or on behalf of the Company has been deemed a preferential transfer and
theretofore recovered from such holder or former holder of such Bond of the 2013
Series pursuant to the United States Bankruptcy Code by a trustee in bankruptcy
in accordance with the final, nonappealable order of a court having competent
jurisdiction, the Trustee shall, at the time Ambac is notified pursuant to
Section 1.01(d) above, notify all holders of Bonds of the 2013 Series that in
the event that any holder's payment is so recovered, such holder will be
entitled to payment from Ambac to the extent of such recovery if sufficient
funds are not otherwise available, and the Trustee shall furnish to Ambac its
records evidencing the payments of principal of and interest on the Bonds of the
2013 Series that have been made by the Trustee and subsequently recovered from
holders and the dates on which such payments were made.
(i) In addition to those rights granted Ambac under this Supplemental
Indenture, Ambac shall, to the extent it makes payment of principal of or
interest on Bonds of the 2013 Series, become subrogated to the rights of the
recipients of such payments in accordance with the terms of the Policy, and to
evidence such subrogation (i) in the case of subrogation as to claims for past
due interest, the Trustee shall note Ambac's rights as subrogee on the
registration books of the Company maintained by the Trustee upon receipt from
Ambac of proof of the payment of interest thereon to the holders of the Bonds of
the 2013 Series, and (ii) in the case of subrogation as to claims for past due
principal, the Trustee shall note Ambac's rights as subrogee on the registration
books of the Company maintained by the Trustee upon surrender of the Bonds of
the 2013 Series by the holders thereof.
(j) Upon compliance with the provisions of Section 2.06 of the
Mortgage and as provided in this Supplemental Indenture, and upon payment of any
taxes or other governmental charges payable upon such exchange, Bonds of the
2013 Series may be exchanged for a new Bond or Bonds of the 2013 Series of
different authorized denominations of like aggregate principal amount, subject,
however, to the provisions of Section 1.10 below. The Trustee hereunder shall,
by virtue of its office as such Trustee, be the registrar and transfer agent of
the Company for the purpose of registering permitted transfers of Bonds of the
2013 Series.
(k) Notwithstanding the provisions of Section 2.11 of the Mortgage, no
service charge shall be made for any exchange or registration of transfer of
Bonds of the 2013 Series, but the Company at its option may require payment of a
sum sufficient to cover any tax or other governmental charge incident thereto.
SECTION 1.02. Mandatory Redemption of Bonds of the 2013 Series.
(a) The Bonds of the 2013 Series shall be redeemed prior to maturity,
as a whole but not in part:
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(i) Upon the sale or disposition substantially as an entirety of
the Company's electric properties at Portland, Oregon, at a price
("Redemption Price") equal to the greater of (i) 100% of the
principal amount thereof and (ii) an amount equal to the present
value of the remaining principal and interest payments due under
the Bonds of the 2013 Series (not including any portion of such
payments of interest accrued as of the date of redemption),
discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at
the Adjusted Treasury Rate, plus 15 basis points, together in
either case with accrued and unpaid interest to the date of
redemption. The Company shall give Ambac and the Trustee written
notice of the Redemption Price ("Price Notice") immediately after
the calculation thereof, and the Trustee shall have no
responsibility for such calculation.
(ii) Upon the sale or disposition substantially as an entirety,
whether in one or more transactions, of the electric distribution
and transmission assets and properties of the Company in its
service territory, at the Redemption Price. The Company shall
provide the Price Notice to Ambac and the Trustee immediately
after the calculation of the Redemption Price, and the Trustee
shall have no responsibility for such calculation.
(iii) Upon written notice to the Trustee and the Company from
Ambac that the Company is in breach of its covenant in Section
3.01(a) of the Insurance Agreement, at the Redemption Price. The
Company shall provide the Price Notice to Ambac and the Trustee
immediately after the calculation of the Redemption Price, and
the Trustee shall have no responsibility for such calculation.
(b) Redemption pursuant to this Section 1.02 shall take place upon
prior notice given by mailing such notice to the respective registered owners of
such Bonds of the 2013 Series not less than thirty (30) nor more than ninety
(90) days prior to the date of redemption and as otherwise required by the
provisions of Article Nine of the Mortgage.
(c) The following definitions shall apply for purposes of this Section
1.02:
(i) "Adjusted Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date. The Adjusted
Treasury Rate will be calculated on the third Business Day
preceding the redemption date.
(ii) "Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Bonds of the
2013 Series to be redeemed that would be used, at the time of
selection and in accordance with customary financial
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practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Bonds of the
2013 Series (the "Remaining Life").
(iii) "Comparable Treasury Price" means (a) the average of four
Reference Treasury Dealer Quotations for the redemption date,
after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (b) if the Independent Investment Banker obtains
fewer than four such Reference Treasury Dealer Quotations, the
average of all such quotations.
(iv) "Independent Investment Banker" means an independent
investment and banking institution of national standing appointed
by the Company.
(v) "Insurance Agreement" means the Insurance Agreement dated
April 8, 2003 by and between the Company and Ambac.
(vi) "Reference Treasury Dealer" means a primary U.S. Government
securities dealer in New York City selected by the Independent
Investment Banker.
(vii) "Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer, the average, as determined by
the Independent Investment Banker, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Independent Investment Banker at 5:00 p.m., New York City time,
on the fourth Business Day preceding the redemption date.
SECTION 1.03. Acknowledgements and Consents. Notwithstanding any
provision of the Indenture, from the date of this Supplemental Indenture, but
only so long as the Policy insuring the payments of the principal and interest
on the Bonds of the 2013 Series shall be outstanding:
(a) No modification of the Indenture that requires the consent of the
holders of the Bonds of the 2013 Series shall be made without the consent of
Ambac, whether or not it is the holder of any of the Bonds of the 2013 Series.
(b) Ambac shall be a third party beneficiary to the Indenture and may
enforce any right, remedy or claim conferred, given or granted to Ambac under
this Supplemental Indenture; provided that nothing in the Indenture expressed or
implied is intended or shall be construed to confer upon, or to give or grant
to, any person or entity, other than the holders of the Bonds of the 2013
Series, the Company, the Trustee and, as provided in this Section 1.03, Ambac,
any right, remedy or claim under or by reason of the Indenture or any covenant,
condition or stipulation in the Indenture.
(c) The Company will permit Ambac to discuss with appropriate officers
of the Company the affairs and finances of the Company and any reasonable
information regarding the lien of the Indenture on the properties of the Company
and the accounts of the Company related
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thereto as Ambac may reasonably request, subject to any restrictions or
limitations imposed on the Company by federal or state laws.
(d) The Company agrees that it will not amend or modify, and will not
consent to any amendment or modification to, this Section 1.03 without the
express written consent of Ambac.
SECTION 1.04. Defeasence. Notwithstanding Section 15.03 of the
Mortgage, in the event that the principal and/or interest due on any of the
Bonds of the 2013 Series shall be paid by Ambac pursuant to the Policy, such
Bonds of the 2013 Series shall remain outstanding for all purposes of the
Indenture, shall not be deemed defeased or otherwise satisfied, shall not be
considered paid by the Company, and shall remain entitled to the lien, benefit,
security and rights under the Indenture; provided that all such rights and
benefits shall run to the benefit of Ambac, and Ambac shall be subrogated to the
rights of the holders of such Bonds of the 2013 Series, in either case, to the
extent of such payment.
SECTION 1.05. Sections 4.04, 4.05 and 4.06 to Remain in Effect.
Notwithstanding the provisions of Sections 4.04, 4.05, 4.06 and 4.07 of the
Mortgage, the provisions of Sections 4.04, 4.05 and 4.06 of the Mortgage shall
remain in full force and effect and shall be performed by the Company so long as
any Bonds of the 2013 Series remain outstanding.
SECTION 1.06. Certain Requirements of Mortgage to Remain Applicable.
The requirements which are stated in the next to the last paragraph of Section
1.13 and in Clause (9) of Paragraph A of Section 3.01 of the Mortgage to be
applicable so long as any of the Bonds of the 1975 Series are outstanding shall
remain applicable so long as any of the Bonds of the 2013 Series are
outstanding.
SECTION 1.07. Certain Exceptions to Sections 2.06 and 2.10 of the
Mortgage. Notwithstanding the provisions of Section 2.06 or Section 2.10 of the
Mortgage, the Company shall not be required (a) to issue, register, discharge
from registration, exchange or register the transfer of any Bond of the 2013
Series for a period of fifteen (15) days next preceding any selection by the
Trustee of Bonds of the 2013 Series to be redeemed or (b) to register, discharge
from registration, exchange or register the permitted transfer of any Bond of
the 2013 Series so selected for redemption in its entirety or (c) to exchange or
register the permitted transfer of any portion of a Bond of the 2013 Series
which portion has been so selected for redemption.
SECTION 1.08. Reference to Minimum Provision for Depreciation in
Certificate of Available Additions. So long as any Bonds of the 2013 Series
remain outstanding, all references to the minimum provision for depreciation in
the form of certificate of available additions set forth in Section 3.03 of the
Mortgage shall be included in any certificate of available additions filed with
the Trustee, but whenever Bonds of the 2013 Series shall no longer be
outstanding, all references to such minimum provisions for depreciation may be
omitted from any such certificate.
SECTION 1.09. Reporting Obligations. To the extent the Company is no
longer required to file or does not voluntarily file the following documents
with the Securities and Exchange Commission (the "SEC"), so long as any Bonds of
the 2013 Series are outstanding, the
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Company shall furnish to the Trustee, within the time periods specified in the
SEC's rules and regulations, the following:
(a) All quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the
Company were required to file such forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations" that describes
the financial condition and results of operations of the Company and its
consolidated subsidiaries and, with respect to the annual information only, a
report thereon by the Company's certified independent accountants.
(b) All current reports that would be required to be filed with the
SEC on Form 8-K if the Company were required to file such reports.
The Trustee shall retain such documents in accordance with its
customary procedures. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein.
SECTION 1.10. Transfer and Exchange Provisions.
(a) Transfer and Exchange of Global Bonds. Except as expressly
permitted herein, Global Bonds may not be transferred except as a whole by DTC
to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or
any such nominee to a successor of DTC or a nominee of such successor. Global
Bonds shall be exchangeable for corresponding Definitive Bonds registered in a
name other than DTC or its nominee only if (i) DTC (A) notifies the Company that
it is unwilling or unable to continue as a Depository for any of the Global
Bonds or (B) at any time ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), (ii) there
shall have occurred and be continuing an event of default with respect to the
Bonds of the 2013 Series or (iii) the Company executes and delivers to the
Trustee an order to the effect that the Global Bonds will be so exchangeable.
Upon the occurrence of any of the preceding events in (i), (ii) or (iii) above,
Definitive Bonds shall be issued in such names as the Depository shall instruct
the Trustee. Global Bonds also may be exchanged or replaced, in whole or in
part, as provided herein. Every Bond of the 2013 Series authenticated and
delivered in exchange for, or in lieu of, a Global Bond or any portion thereof,
pursuant to this Section 1.10(a) shall be authenticated and delivered in the
form of, and shall be, a Global Bond. A Global Bond may not be exchanged for
another Bond of the 2013 Series, whether in global or certificated form, other
than as provided in this Section 1.10.
(b) Transfer and Exchange of Beneficial Interests in the Global Bonds.
The transfer and exchange of beneficial interests in the Global Bonds shall be
effected through the Depository, in accordance with the provisions of the
Indenture and the applicable rules and procedures of DTC, ▇▇▇▇▇▇ Guaranty Trust
Company of New York, Brussels office, or its successor, as operator of the
Euroclear system ("Euroclear") and Clearstream Banking, societe anonyme,
Luxembourg ("Clearstream") that apply to such transfer or exchange at the
relevant time (the "Applicable Procedures"). Beneficial interests in the Global
Bonds shall be subject to restrictions on transfer comparable to those set forth
herein to the extent required in order for the Company to comply
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with the Securities Act. Transfers and exchanges of beneficial interests in the
Global Bonds also shall require compliance with either subparagraph (i) or (ii)
below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(i) Transfers and Exchanges of Beneficial Interests in Global Bonds.
Transfers of beneficial interest in the Bonds of the 2013 Series shall
require delivery to the Trustee, as registrar, by the transferor of either
(A)(1) an order from a person who has an account with DTC, Euroclear or
Clearstream (a "Participant") or an entity that clears through or maintains
a direct or indirect custodial relationship with a Participant (an
"Indirect Participant") given to the Depository in accordance with the
Applicable Procedures directing the Depository to credit or cause to be
credited a beneficial interest in another Global Bond in an amount equal to
the beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or
(B)(1) an order from a Participant or an Indirect Participant given to the
Depository in accordance with the Applicable Procedures directing the
Depository to cause to be issued a Definitive Bond in an amount equal to
the beneficial interest to be transferred or exchanged and (2) instructions
given by the Depository to the Trustee, as registrar, containing
information regarding the person in whose name such Definitive Bond shall
be registered to effect the transfer or exchange referred to in (B)(1)
above. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Bonds contained in the Indenture
and the Bonds of the 2013 Series or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Bond(s) pursuant to the Indenture.
(ii) Transfer and Exchange of Beneficial Interests in a Global Bond for
Beneficial Interests in the Unrestricted Global Bond. A beneficial interest
in any Global Bond may be exchanged for a beneficial interest in a Global
Bond not bearing or required to bear the private placement legend (the
"Private Placement Legend") set forth on the form of face of the Bonds of
the 2013 Series and in Section 1.10(f)(i) below (an "Unrestricted Global
Bond") or transferred to a person who takes delivery thereof in the form of
a beneficial interest in an Unrestricted Global Bond if the exchange or
transfer complies with the requirements of Section 1.10(b)(i) and the
Trustee, as registrar, receives the following: (A) if the holder of such
beneficial interest in a Global Bond proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global Bond, a
certificate from such holder substantially in the form of Exhibit B hereto,
including the certifications in item (1)(a) thereof; or (B) if the holder
of such beneficial interest in a Global Bond proposes to transfer such
beneficial interest to a person who shall take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Bond, a certificate from
such holder substantially in the form of Exhibit A hereto, including the
certifications in item (4) thereof; and a written opinion of legal counsel,
reasonably acceptable to the Trustee, as registrar, and the Company to the
effect that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act ("Opinion of Counsel").
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If any such transfer is effected pursuant to the foregoing at a time when an
Unrestricted Global Bond has not yet been issued, the Company shall issue and,
upon receipt of an authentication order in accordance with the terms of the
Indenture, the Trustee shall authenticate one or more Unrestricted Global Bonds
in an aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to subclause (ii) above. Beneficial
interests in an Unrestricted Global Bond cannot be exchanged for, or transferred
to persons who take delivery thereof in the form of, a beneficial interest in a
Global Bond containing the Private Placement Legend.
(c) Transfer or Exchange of Beneficial Interests in Global Bonds for
Definitive Bonds.
(i) Beneficial Interests in Global Bonds to Definitive Bonds. Subject
to the limitations set forth in Sections 1.01 and 1.10(a), if any
holder of a beneficial interest in a Global Bond proposes to exchange
such beneficial interest for a Definitive Bond or to transfer such
beneficial interest to a person who takes delivery thereof in the form
of a Definitive Bond, then, upon receipt by the Trustee, as registrar,
of the following documentation:
(A) if the holder of such beneficial interest in a Global Bond
proposes to exchange such beneficial interest for a Definitive
Bond, a certificate from such holder substantially in the form of
Exhibit B hereto, including the certifications in item (2)(a)
thereof;
(B) if the holder of such beneficial interest in a Global Bond
proposes to transfer such beneficial interest to another person
who takes delivery thereof in the form of a Definitive Bond, a
certificate from such holder to the effect set forth in Exhibit A
hereto, including any certifications and opinions of counsel
required therein;
the Trustee shall cause the aggregate principal amount of the
applicable Global Bond to be reduced accordingly pursuant to Section
1.10(g), and the Company shall execute and, upon receipt of an
authentication order pursuant to the terms of the Indenture, the
Trustee shall authenticate and deliver to the person designated in the
instructions a Definitive Bond in the appropriate principal amount.
Any Definitive Bond issued in exchange for a beneficial interest in a
Global Bond pursuant to this Section 1.10(c) shall be registered in
such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct
the Trustee, as registrar, through instructions from the Depository
and the Participant or Indirect Participant. The Trustee shall deliver
such Definitive Bonds to the persons in whose names such Definitive
Bonds are so registered. Any Definitive Bond issued in exchange for a
beneficial interest in a Global Bond pursuant to this Section
1.10(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Global Bonds to Unrestricted Definitive
Bonds. Subject to the limitations set forth in Sections 1.01 and
1.10(a), a holder of a beneficial interest in a Global Bond may
exchange such beneficial interest for one or more Definitive Bonds
that do not bear and are not required to bear the Private Placement
Legend (the "Unrestricted
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Definitive Bonds") or may transfer such beneficial interest to a
person who takes delivery thereof in the form of an Unrestricted
Definitive Bond only if the Trustee, as registrar, receives the
following: (A) if the holder of such beneficial interest in a Global
Bond proposes to exchange such beneficial interest for an Unrestricted
Definitive Bond, a certificate from such holder substantially in the
form of Exhibit B hereto, including the certifications in item (1)(b)
thereof; or (B) if the holder of such beneficial interest in a Global
Bond proposes to transfer such beneficial interest to a person who
shall take delivery thereof in the form of an Unrestricted Definitive
Bond, a certificate from such holder substantially in the form of
Exhibit A hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subclause (ii) (except in the
case of a transfer contemplated by item (4)(a) or (d) of Exhibit A),
an Opinion of Counsel.
(iii) Beneficial Interests in Unrestricted Global Bonds to
Unrestricted Definitive Bonds. Subject to the limitations set forth in
Sections 1.01 and 1.10(a), if any holder of a beneficial interest in
an Unrestricted Global Bond proposes to exchange such beneficial
interest for an Unrestricted Definitive Bond or to transfer such
beneficial interest to a person who takes delivery thereof in the form
of an Unrestricted Definitive Bond, then, upon satisfaction of the
conditions set forth in Section 1.10(b)(ii), the Trustee shall cause
the aggregate principal amount of the applicable Unrestricted Global
Bond to be reduced accordingly pursuant to Section 1.10(g), and the
Company shall execute and, upon receipt of an authentication order
pursuant to the Mortgage and this Supplemental Indenture, the Trustee
shall authenticate and deliver to the person designated in the
instructions an Unrestricted Definitive Bond in the appropriate
principal amount. Any Unrestricted Definitive Bond issued in exchange
for a beneficial interest pursuant to this Section 1.10(c)(iii) shall
be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial
interest shall instruct the Trustee, as registrar, through
instructions from the Depository and the Participant or Indirect
Participant. The Trustee shall deliver such Unrestricted Definitive
Bonds to the persons in whose names such Unrestricted Definitive Bonds
are so registered. Any Unrestricted Definitive Bond issued in exchange
for a beneficial interest in an Unrestricted Global Bond pursuant to
this Section 1.10(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Bonds for Beneficial Interests
in Global Bonds.
(i) Definitive Bonds to Beneficial Interests in Global Bonds. If any
holder of a Definitive Bond proposes to exchange such Definitive Bond
for a beneficial interest in a Global Bond or to transfer such
Definitive Bond to a person who takes delivery thereof in the form of
a beneficial interest in a Global Bond, then, upon receipt by the
Trustee, as registrar, of the following documentation:
(A) if the holder of such Definitive Bond proposes to exchange
such Definitive Bond for a beneficial interest in a Global Bond,
a certificate from such holder substantially in the form of
Exhibit B hereto, including the certifications in item (2)(b)
thereof;
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(B) if the holder of such Definitive Bond proposes to transfer
such Definitive Bond to another person who takes delivery thereof
in the form of a beneficial interest in a Global Bond, a
certificate from such holder to the effect set forth in Exhibit A
hereto, including any certifications and opinions of counsel
required therein;
the Trustee shall cancel the Definitive Bond, increase or cause to be
increased the aggregate principal amount of the appropriate Global
Bond2013.
(ii) Definitive Bonds to Beneficial Interests in Unrestricted Global
Bonds. A holder of a Definitive Bond may exchange such Definitive Bond
for a beneficial interest in an Unrestricted Global Bond or transfer
such Definitive Bond to a person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Bond only if
the Trustee, as registrar, receives the following: (A) if the holder
of such Definitive Bonds proposes to exchange such Definitive Bonds
for a beneficial interest in the Unrestricted Global Bond, a
certificate from such holder substantially in the form of Exhibit B
hereto, including the certifications in item (1)(c) thereof; or (B) if
the holder of such Definitive Bonds proposes to transfer such
Definitive Bonds to a person who shall take delivery thereof in the
form of a beneficial interest in the Unrestricted Global Bond, a
certificate from such holder substantially in the form of Exhibit A
hereto, including the certifications in item (4) thereof; and (except
in the case of a transfer contemplated by item (4)(a) or (d) of
Exhibit A), an Opinion of Counsel2013. Upon satisfaction of the
conditions of this Section 1.10(d)(ii), the Trustee shall cancel the
Definitive Bonds so transferred or exchanged and increase or cause to
be increased the aggregate principal amount of the Unrestricted Global
Bond.
(iii) Unrestricted Definitive Bonds to Beneficial Interests in
Unrestricted Global Bonds. A holder of an Unrestricted Definitive Bond
may exchange such Unrestricted Definitive Bond for a beneficial
interest in an Unrestricted Global Bond or transfer such Unrestricted
Definitive Bonds to a person who takes delivery thereof in the form of
a beneficial interest in an Unrestricted Global Bond at any time2013.
Upon receipt of a request for such an exchange or for registration of
such a transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Bond and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Bonds.
(iv) Issuance of Unrestricted Global Bonds. If any such exchange or
transfer from a Definitive Bond to a beneficial interest in a Global
Bond is effected pursuant to subparagraphs (ii) or (iii) of this
Section 1.10(d) at a time when an Unrestricted Global Bond has not yet
been issued, the Company shall issue and, upon receipt of an
authentication order in accordance with the Mortgage and this
Supplemental Indenture, the Trustee shall authenticate one or more
Unrestricted Global Bonds in an aggregate principal amount equal to the
principal amount of Definitive Bonds so exchanged or transferred.
(e) Transfer and Exchange of Definitive Bonds for Definitive Bonds.
Upon request by a holder of Definitive Bonds and such holder's compliance with
the provisions of this Section
-24-
1.10(e), the Trustee, as registrar, shall register the transfer or exchange of
Definitive Bonds. Prior to such registration of transfer or exchange, the
requesting holder shall present or surrender to the Trustee, as registrar, the
Definitive Bonds duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Trustee, as registrar, duly executed by
such holder or by its attorney, duly authorized in writing. In addition, the
requesting holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 1.10(e).
(i) Definitive Bonds to Definitive Bonds. Any Definitive Bond may be
transferred to and registered in the name of persons who take delivery
thereof in the form of a Definitive Bond if the Trustee, as registrar,
receives from the transferor a certificate substantially in the form of
Exhibit A hereto, including the certifications and legal opinions
required therein.
(ii) Definitive Bonds to Unrestricted Definitive Bonds. Any Definitive
Bond may be exchanged by the holder thereof for an Unrestricted
Definitive Bond or transferred to a person or persons who take delivery
thereof in the form of an Unrestricted Definitive Bond if the Trustee,
as registrar, receives the following: (A) if the holder of such
Definitive Bonds proposes to exchange such Definitive Bonds for an
Unrestricted Definitive Bond, a certificate from such holder
substantially in the form of Exhibit B hereto, including the
certifications in item (1)(d) thereof; or (B) if the holder of such
Definitive Bonds proposes to transfer such Definitive Bonds to a person
who shall take delivery thereof in the form of an Unrestricted
Definitive Bond, a certificate from such holder substantially in the
form of Exhibit A hereto, including the certifications in item (4)
thereof; and (except in the case of a transfer contemplated by item
(4)(a) or (d) of Exhibit A), an Opinion of Counsel.
(iii) Unrestricted Definitive Bonds to Unrestricted Definitive Bonds. A
holder of Unrestricted Definitive Bonds may transfer such Unrestricted
Definitive Bonds to a person who takes delivery thereof in the form of
an Unrestricted Definitive Bond. Upon receipt of a request to register
such a transfer, the Trustee, as registrar, shall register the
Unrestricted Definitive Bonds pursuant to the instructions from the
holder thereof.
(f) Legends. The following legends shall appear on the face of all
Global Bonds and Definitive Bonds issued under this Supplemental Indenture
unless specifically stated otherwise in the applicable provisions of this
Supplemental Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Bond and each Definitive Bond (and all Securities issued in
exchange therefor or substitution thereof) shall bear the legend
in substantially the following form:
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER
HEREOF, BY PURCHASING THIS BOND,
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AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS BOND MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN
(A)(1) TO THE COMPANY, (2) IN A TRANSACTION ENTITLED TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT, (3) SO LONG AS THIS BOND IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (4) OUTSIDE THE UNITED STATES IN A
TRANSACTION MEETING THE REQUIREMENTS OF REGULATION S UNDER
THE SECURITIES ACT OR (5) IN ACCORDANCE WITH ANOTHER
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) AND (B) IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF EACH STATE
OF THE UNITED STATES. IF THE PROPOSED TRANSFER IS PURSUANT
TO CLAUSE (5) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE COMPANY AND THE TRUSTEE SUCH
CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY
REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS BOND
COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF,
BY PURCHASING THIS BOND, REPRESENTS AND AGREES FOR THE
BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) A
NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT.
(B) Notwithstanding the foregoing, any Global Bond or Definitive
Bond issued pursuant to subparagraphs (b)(ii), (c)(ii), (c)(iii),
(d)(ii), (d)(iii), (e)(ii) and (e)(iii) of this Section 1.10 (and
all Bonds of the 2013 Series issued in exchange therefor or
substitution thereof) shall not bear the Private Placement
Legend.
(ii) Global Bond Legend. Each Global Bond shall bear a legend in
substantially the following form (unless otherwise specified by the
Depository):
THIS GLOBAL BOND IS HELD BY THE DEPOSITORY (AS DEFINED IN
THE MORTGAGE AND SUPPLEMENTAL
-26-
INDENTURE GOVERNING THIS BOND) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 1.10 OF THE SUPPLEMENTAL
INDENTURE, (II) THIS GLOBAL BOND MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 1.10(a) OF THE
SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL BOND MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.06 OF THE MORTGAGE AND (IV) THIS GLOBAL BOND MAY
BE TRANSFERRED AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF
THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) ("▇▇▇"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY
AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(iii) Insurance Legend. Each Global Bond and each Definitive Bond (and
all Securities issued in exchange therefor or substitution thereof)
shall bear a legend in substantially the following form:
Financial Guaranty Insurance Policy No. 20774BE, or any
successor policy (the "Policy"), with respect to payments
due for principal of and interest on this bond has been
issued by Ambac Assurance Corporation ("Ambac"). The Policy
has been delivered to The Bank of New York, New York, New
York, as the Insurance Trustee under said Policy and will be
held by such Insurance Trustee or any successor insurance
trustee. The Policy is on file and available for inspection
at the principal office of the Insurance Trustee and a copy
thereof may be secured from
-27-
Ambac or the Insurance Trustee. All payments required to be
made under the Policy shall be made in accordance with the
provisions thereof. The owner of this bond acknowledges and
consents to the rights, including subrogation rights, of
Ambac as more fully set forth in the Policy and the
Indenture.
(g) Cancellation and/or Adjustment of Global Bonds. At such time as
all beneficial interests in a particular Global Bond have been exchanged for
Definitive Bonds or a particular Global Bond has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Bond shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.06 of the
Mortgage. At any time prior to such cancellation, if any beneficial interest in
a Global Bond is exchanged for or transferred to a person who will take delivery
thereof in the form of a beneficial interest in another Global Bond or for
Definitive Bonds, the principal amount of Bonds of the 2013 Series represented
by such Global Bond shall be reduced accordingly and an endorsement shall be
made on such Global Bond by the Trustee or by the Depository at the direction of
the Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a person who will take delivery thereof in the
form of a beneficial interest in another Global Bond, the principal amount of
Bonds of the 2013 Series represented by such other Global Bond shall be
increased accordingly and an endorsement shall be made on such Global Bond by
the Trustee or by the Depository at the direction of the Trustee to reflect such
increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) The Bonds of the 2013 Series shall be transferable only upon the
surrender of a Bond of the 2013 Series for registration of transfer
and in compliance with this Section 1.10. When a bond is presented to
the Trustee, as registrar, with a request to register a transfer, the
Trustee, as registrar, shall register the transfer as requested if the
requirements of Section 8-401 of the Uniform Commercial Code and this
Section 1.10 are met. When Bonds of the 2013 Series are presented to
the Trustee, as registrar, with a request to exchange them for an
equal principal amount of Global Bonds or Definitive Bonds of other
denominations, the Trustee, as registrar, shall make the exchange as
requested if the same requirements are met.
(ii) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Bonds and
Definitive Bonds upon receipt of an authentication order from the
Company in accordance with the Indenture.
(iii) The Trustee, as registrar, shall retain copies of all
certificates, opinions of counsel, notices and other written
communications received pursuant to this Section 1.10 in accordance
with its customary procedures. The Company shall have the right to
inspect and make copies of all such certificates, opinions of counsel,
notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Trustee, as registrar.
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(iv) All Global Bonds and Definitive Bonds issued upon any
registration of transfer or exchange of Global Bonds or Definitive
Bonds shall be the valid obligations of the Company, evidencing the
same indebtedness, and entitled to the same benefits under the
Indenture, as the Global Bonds or Definitive Bonds surrendered upon
such registration of transfer or exchange.
(v) Prior to due presentment for the registration of a transfer of any
Bond of the 2013 Series, the Trustee, any agent and the Company may
deem and treat the person in whose name any Bond of the 2013 Series is
registered as the absolute owner for the purpose of receiving payment
of principal of, premium, if any, and interest, payment of the
redemption price and for all other purposes, and none of the Trustee,
any agent or the Company shall be affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Bonds and Definitive Bonds
in accordance with the provisions of the Mortgage and this
Supplemental Indenture.
(vii) All certifications, certificates and opinions of counsel
required to be submitted to the Trustee, as registrar, pursuant to
this Section 1.10 to effect a registration of transfer or exchange may
be submitted by facsimile, with an original of such document to be
sent promptly thereafter.
(viii) Notwithstanding anything herein to the contrary, as to any
certifications and certificates delivered to the Trustee, as
registrar, pursuant to this Section 1.10, the registrar's duties shall
be limited to confirming that any such certifications and certificates
delivered to it are substantially in the form of Exhibits A and B
attached hereto. The Trustee, as registrar, shall not be responsible
for confirming the truth or accuracy of representations made in any
such certifications or certificates.
SECTION 1.11. CUSIP, ISIN or Common Code Numbers. The Company in
issuing the Bonds of the 2013 Series may use "CUSIP," "ISIN" or "Common Code"
numbers (if then generally in use) and, if so, the Trustee shall use such
numbers in notices of redemption or repurchase as a convenience to holders;
provided, however, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the bonds or as
contained in any notice of a redemption or repurchase and that reliance may be
placed only on the other identification numbers printed on the bonds, and any
such redemption or repurchase shall not be affected by any defect in or omission
of such numbers. The Company shall promptly notify the Trustee of any change in
"CUSIP," "ISIN" or "Common Code" numbers.
SECTION 1.12. Duration of Article One. This Article One shall be of
force and effect only so long as any Bonds of the 2013 Series are outstanding.
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ARTICLE TWO.
TRUSTEE.
SECTION 2.01. Trustee Consents. Notwithstanding any provision of the
Indenture, from the date of this Supplemental Indenture, but only so long as the
Policy insuring the payments of the principal and interest on the Bonds of the
2013 Series shall be outstanding:
(a) The Trustee acknowledges, agrees and consents that unless the
Trustee has received written notice that the Policy is no longer in effect, no
modification of the Indenture that requires the consent of the holders of the
Bonds of the 2013 Series shall be made without the consent of Ambac, whether or
not it is the holder of any of the Bonds of the 2013 Series.
(b) In addition to notice to the holders of the Bonds of the 2013
Series, the Trustee shall send to Ambac, at the address provided to the Trustee
in writing from time to time by Ambac, all notices and other communications
required to be sent to the holders of the Bonds of the 2013 Series pursuant to
the Indenture; provided that if Ambac shall fail to provide to the Trustee in
writing an address, such notices and communications shall be sent to the holders
of the Bonds of the 2013 Series only.
(c) The Trustee agrees that it will not amend or modify, and will not
consent to any amendment or modification to, this Section 2.01 without the
express written consent of Ambac.
SECTION 2.02. Duties of Trustee. The Trustee hereby accepts the trust
hereby created. The Trustee undertakes, prior to the occurrence of an event of
default and after the curing of all events of default which may have occurred,
to perform such duties and only such duties as are specifically set forth in the
Indenture, on and subject to the terms and conditions set forth in the
Indenture, and in case of the occurrence of an event of default (which has not
been cured) to exercise such of the rights and powers vested in it by the
Indenture, and to use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or the
Bonds of the 2013 Series issued hereunder or the due execution thereof by the
Company. The Trustee shall be under no obligation or duty with respect to the
filing, registration or recording of this Supplemental Indenture or the
re-filing, re-registration or re-recording thereof. The recitals of fact
contained herein or in the Bonds of the 2013 Series (other than the Trustee's
authentication certificate) shall be taken as the statements solely of the
Company, and the Trustee assumes no responsibility for the correctness thereof.
Notwithstanding Section 2.01 of this Supplemental Indenture, the
Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity or sufficiency of the Policy and shall be under no obligation or
duty with respect thereto, including determining if the Policy shall be or
remain outstanding. Until such time as the Trustee shall receive written notice
from Ambac and the Company that the Policy is no longer outstanding or otherwise
is not applicable to the Bonds of the 2013 Series, the Trustee shall be entitled
to and shall assume that the Policy is outstanding and applicable
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to the Bonds of the 2013 Series.
ARTICLE THREE.
MISCELLANEOUS PROVISIONS.
SECTION 3.01. Date of this Supplemental Indenture. Although this
Supplemental Indenture, for convenience and for the purpose of reference, is
dated April 1, 2003, the actual date of execution by the Company and by the
Trustee is as indicated by their respective acknowledgments hereto annexed.
SECTION 3.02. Relation to Original Indenture. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture as heretofore supplemented and modified, and as supplemented
and modified hereby, the Original Indenture as heretofore supplemented and
modified is in all respects ratified and confirmed, and the Original Indenture
as heretofore and hereby supplemented and modified shall be read, taken and
construed as one and the same instrument. All terms used in this Supplemental
Indenture shall be taken to have the same meaning as in the Original Indenture
except in cases where the context clearly indicates otherwise.
SECTION 3.03. Notices to Ambac. Any notices and other communications
required to be provided to Ambac under this Supplemental Indenture shall be in
writing and addressed to the following:
Ambac Assurance Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Surveillance Department
with a copy to:
Ambac Assurance Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
or at such other address as may be designated by Ambac in writing to the
Trustee.
SECTION 3.04. Invalid, Illegal or Unenforceable Provisions. In case
any one or more of the provisions contained in this Supplemental Indenture or in
the Bonds of the 2013 Series shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Supplemental Indenture, but this
Supplemental Indenture shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein.
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SECTION 3.05. Counterparts. This Supplemental Indenture may be
executed in any number of counterparts, and each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts, or as many
of them as the Company and the Trustee shall preserve undestroyed, shall
together constitute but one and the same instrument.
SECTION 3.06. Conflicting Provision. If any provision of this
Supplemental Indenture conflicts with another provision of the Mortgage required
to be included in indentures qualified under the Trust Indenture Act of 1939 (as
enacted prior to the date of this Supplemental Indenture) by any of the
provisions of said Act, such required provision shall control.
SECTION 3.07. Headings. Article and Section headings and the table of
contents used herein are for convenience of reference only, are not part of this
Supplemental Indenture and are not to affect the construction of, or to be taken
into consideration in interpreting, this Supplemental Indenture.
SECTION 3.08. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
DETERMINED WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS (OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
PROVIDED THAT THE FOREGOING SHALL NOT APPLY TO THE CREATION OR ENFORCEMENT OF
ANY LIEN ON REAL PROPERTY CREATED BY THE INDENTURE, WHICH SHALL BE GOVERNED BY
THE LAWS OF THE STATE IN WHICH SUCH REAL PROPERTY IS LOCATED.
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IN WITNESS WHEREOF, Portland General Electric Company has caused this
Supplemental Indenture to be signed in its corporate name by its President or
one of its Executive Vice Presidents or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Secretary or one of
its Assistant Secretaries, and in token of its acceptance of the trusts created
hereunder, HSBC Bank USA has caused this Supplemental Indenture to be signed in
its corporate name by one of its Vice Presidents or one of its Assistant Vice
Presidents or one of its Corporate Trust Officers and its corporate seal to be
hereunto affixed and attested by one of its Corporate Trust Officers, all as of
the day and year first above written.
PORTLAND GENERAL ELECTRIC COMPANY
By: //▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Attest: // ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Title: Assistant Secretary
(Seal)
HSBC BANK USA, as Trustee
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
Attest: // ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Vice President
(Seal)
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ )
) ss.
County of Multnomah )
The foregoing instrument was acknowledged before me on this 4th day of
April, 2003 by ▇▇▇▇ ▇. ▇▇▇▇▇▇, a Vice President of PORTLAND GENERAL ELECTRIC
COMPANY, an Oregon corporation, on behalf of said corporation.
// ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Notary Public for Oregon
My Commission Expires: 12/28/2004
[NOTARIAL SEAL]
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.
County of New York )
The foregoing instrument was acknowledged before me on this 7th day of
April, 2003 by ▇▇▇▇▇▇ ▇. ▇▇▇▇, an Assistant Vice President of HSBC BANK USA, a
New York banking corporation and trust company, on behalf of said corporation.
// ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Notary Public, State of New York
No. 24-01MA4761665
My Commission Expires: 11-30-06
[NOTARIAL SEAL]
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State of Oregon )
) ss.
County of Multnomah )
▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, a Vice President and Assistant
Secretary, respectively, of PORTLAND GENERAL ELECTRIC COMPANY, an Oregon
corporation, the mortgagor in the foregoing mortgage named, being first duly
sworn, on oath depose and say that they are the officers above named of said
corporation and that this affidavit is made for and on its behalf by authority
of its Board of Directors and that the aforesaid mortgage is made by said
mortgagor in good faith, and without any design to hinder, delay or defraud
creditors.
Subscribed and sworn to before me this 4th day of April, 2003.
// ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Notary Public for Oregon
My Commission Expires: 12/28/2004
[NOTARIAL SEAL]
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EXHIBIT A
FORM OF CERTIFICATE OF TRANSFER
PORTLAND GENERAL ELECTRIC COMPANY
HSBC BANK USA (formerly the Marine Midland Trust Company of New York)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Issuer Services
Re: PORTLAND GENERAL ELECTRIC COMPANY
5.279% FIRST MORTGAGE BONDS DUE 2013 (the "Bonds").
Reference is hereby made to that certain Indenture of Mortgage and
Deed of Trust, dated July 1, 1945 between Portland General Electric Company (the
"Issuer") and HSBC Bank USA (formerly the Marine Midland Trust Company of New
York), as trustee (the "Trustee"), as such indenture has been amended from time
to time by various supplemental indentures (the "Original Indenture") and the
Fifty-second Supplemental Indenture dated as of [January 1], 2003 between the
Issuer and the Trustee (the "Supplemental Indenture," and together with the
Original Indenture, the "Indenture"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
______________ (the "Transferor") owns and proposes to transfer the
Bonds or interests in Bonds specified in Annex A hereto, in the principal amount
of $___________ (the "Transfer"), to __________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. [] Check if Transferee will take delivery of a beneficial interest
in a Global Bond or a Definitive Bond Pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest in a Global Bond or a Definitive Bond is being transferred to a person
that the Transferor reasonably believed and believes is purchasing the
beneficial interest in a Global Bond or such Definitive Bond for its own
account, or for one or more accounts with respect to which such person exercises
sole investment discretion, and such person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance with
any applicable blue sky securities laws of any relevant State of the United
States. Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Bond will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Global Bonds and/or the Definitive Bonds and in the
Indenture and with the Securities Act.
2. [] Check if Transferee will take delivery of a beneficial interest
in a Global Bond or a Definitive Bond pursuant to Regulation S. The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any person acting on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts (as defined in Rule 902 of Regulation
S) have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Distribution Compliance Period (as provided in Rule 904 of
Regulation S), the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an initial purchaser) and the
interest transferred will be held immediately thereafter through Euroclear or
Clearstream. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
in a Global Bond or Definitive Bond will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Global Bonds
and/or the Definitive Bonds and in the Indenture and with the Securities Act.
3. [] Check and complete if Transferee will take delivery of a
beneficial interest in a Global Bond or a Definitive Bond pursuant to any
provision of the Securities Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in the Global Bonds and the Definitive Bonds
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any relevant State of the United States, and
accordingly the Transferor hereby further undertakes to furnish, or cause the
Transferee to furnish, to the Company and the Trustee such certificates and
other information as they may reasonably require to confirm that the transfer to
the Transferee of the Global Bond or the Definitive Bond complies with the
foregoing restrictions.
Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest in the Global Bond
or Definitive Bond will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Global Bond or the Definitive Bonds
and in the Indenture and the Securities Act.
4. [] Check if Transferee will take delivery of a beneficial interest
in an Unrestricted Global Bond or of an Unrestricted Definitive Bond.
(a) [] Check if Transfer is pursuant to Rule 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky
securities laws of any relevant State of the United States and (ii)
the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest in a Global Bond or Definitive Bond
will no longer be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Global Bonds, on the
Definitive Bonds and in the Indenture.
(b) [] Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any State of the United States and (ii)
the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Bond will no longer be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Global Bonds, on the Definitive Bonds
and in the Indenture.
(c) [] Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act
other than Rule 144, Rule 903 or Rule 904 and in compliance with the
transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any State of the United States and (ii)
the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest in a Global Bond or Definitive Bond
will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Global Bonds or Definitive
Bonds and in the Indenture. This certificate and the statements
contained herein are made for your benefit and the benefit of the
Company.
______________________
[Insert Name of Transferor]
By:___________________
Name:
Title:
Dated:____________
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [] a beneficial interest in a Global Bond (CUSIP ______), or
(b) [] a Definitive Bond.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [] a beneficial interest in the:
(i) [] Global Bond (CUSIP ______), or
(ii) [] Unrestricted Global Bond (CUSIP ______); or
(b) [] a Definitive Bond; or
(c) [] an Unrestricted Definitive Bond,
in accordance with the terms of the Indenture.
EXHIBIT B
FORM OF CERTIFICATE OF EXCHANGE
PORTLAND GENERAL ELECTRIC COMPANY
HSBC BANK USA (formerly the Marine Midland Trust Company of New York)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Issuer Services
Re: PORTLAND GENERAL ELECTRIC COMPANY
5.279% FIRST MORTGAGE BONDS DUE 2013 (the "Bonds").
Reference is hereby made to that certain Indenture of Mortgage and
Deed of Trust, dated July 1, 1945 between Portland General Electric Company (the
"Issuer") and HSBC Bank USA (formerly the Marine Midland Trust Company of New
York), as trustee (the "Trustee"), as such indenture has been amended from time
to time by various supplemental indentures (the "Original Indenture") and the
Fifty-second Supplemental Indenture dated as of [January 1], 2003 between the
Issuer and the Trustee (the "Supplemental Indenture," and together with the
Original Indenture, the "Indenture"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the Bonds or
beneficial interests in the Bonds specified herein, in the principal amount of
$____________ (the "Exchange"). In connection with the Exchange, the Owner
hereby certifies that:
1. Exchange of Definitive Bonds or Beneficial Interests in a Global Bond
for Unrestricted Definitive Bonds or Beneficial Interests in an Unrestricted
Global Bond
(a) [] Check if Exchange is from beneficial interest in a Global Bond
to beneficial interest in an Unrestricted Global Bond. In connection with the
Exchange of the Owner's beneficial interest in a Global Bond for a beneficial
interest in an Unrestricted Global Bond in an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Bonds and pursuant to
and in accordance with the United States Securities Act of 1933, as amended (the
"Securities Act"), (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Bond is being acquired in compliance with any applicable
blue sky securities laws of any relevant State of the United States.
(b) [] Check if Exchange is from beneficial interest in a Global Bond
to Unrestricted Definitive Bond. In connection with the Exchange of the Owner's
beneficial interest in a Global Bond for an Unrestricted Definitive Bond, the
Owner hereby certifies (i) the Unrestricted Definitive Bond is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Bonds and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Bond is being acquired in compliance with
any applicable blue sky securities laws of any relevant State of the United
States.
(c) [] Check if Exchange is from Definitive Bond to beneficial interest in
an Unrestricted Global Bond. In connection with the Owner's Exchange of a
Definitive Bond for a beneficial interest in an Unrestricted Global Bond, the
Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Definitive Bonds and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest is
being acquired in compliance with any applicable blue sky securities laws of any
relevant State of the United States.
(d) [] Check if Exchange is from Definitive Bond to Unrestricted
Definitive Bond. In connection with the Owner's Exchange of a Definitive Bond
for an Unrestricted Definitive Bond, the Owner hereby certifies (i) the
Unrestricted Definitive Bond is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Definitive Bonds and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted Definitive
Bond is being acquired in compliance with any applicable blue sky securities
laws of any relevant State of the United States.
2. Exchange of Definitive Bonds or Beneficial Interests in Global Bonds for
Definitive Bonds or Beneficial Interests in Global Bonds
(a) [] Check if Exchange is from beneficial interest in a Global Bond
to Definitive Bond. In connection with the Exchange of the Owner's beneficial
interest in a Global Bond for a Definitive Bond with an equal principal amount,
the Owner hereby certifies that the Definitive Bond is being acquired for the
Owner's own account without transfer. Upon consummation of the proposed Exchange
in accordance with the terms of the Indenture, the Definitive Bond issued will
continue to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Definitive Bond and in the Indenture and the
Securities Act.
(b) [] Check if Exchange is from Definitive Bond to beneficial
interest in a Global Bond. In connection with the Exchange of the Owner's
Definitive Bond for a beneficial interest in a Global Bond (only if the Owner is
a "qualified institutional buyer" within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A or if the Owner is Non-U.S.
person) the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Bonds and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any relevant State of
the United States. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the beneficial interest issued will be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the relevant Global Bond and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
______________________
[Insert Name of Owner]
By:_____________________________________
Name:
Title:
Dated:____________
EXHIBIT C
Notice Pursuant to Section 1.01(g)
TO EACH HOLDER OF THE BONDS OF THE 2013 SERIES OF PORTLAND GENERAL ELECTRIC
COMPANY
In accordance with Section 1.01(g) of the Fifty-second Supplemental
Indenture, you are hereby notified (i) that you are entitled to receive the
payment of principal or interest on your Bond(s) from Ambac Assurance
Corporation ("Ambac") in accordance with the Financial Guaranty Insurance Policy
No. 20774BE, or any successor policy (the "Policy"), as noted on your Bond
certificate(s), (ii) that Ambac will remit to you all or a part of the interest
payments next coming due upon proof of your entitlement to interest payments and
delivery to the Insurance Trustee, in form satisfactory to The Bank of New York,
as Insurance Trustee, of an appropriate assignment (the form of which shall be
provided by Ambac) of your right to such payment, (iii) that should you be
entitled to receive full payment of principal from Ambac, you must surrender
your Bond(s) (along with an appropriate instrument of assignment (the form of
which shall be provided by Ambac) to permit ownership of such Bond(s) to be
registered in the name of Ambac) to the Insurance Trustee, and (iv) that should
you be entitled to receive partial payment of principal from Ambac, you must
surrender your Bond(s) for payment thereon first to HSBC Bank USA, as Trustee
under the Fifty-second Supplemental Indenture, to have noted on your Bond(s) the
portion of the principal paid by the Trustee or the Paying Agent, if any, and
then, along with an appropriate instrument of assignment (the form of which
shall be provided by Ambac) to the Insurance Trustee, which will then pay the
unpaid portion of principal.
HSBC BANK USA, as Trustee
By:_________________________
Name:
Title:
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